Lawyers say stupid things sometimes. I know. Before becoming one myself, I wrote about lawyers for daily newspapers. Lawyers' loose lips were my stock in trade. Yet, save for the rare case, the First Amendment has always stood for the right of lawyers, along with everyone else, to speak freely about trials. Whether they should or not is a different question. Now, the State Bar is considering a rule that would subject lawyers to discipline for talking about their cases. Unless the State Bar and California Legislature quickly come to their senses, the proposed disciplinary rule will carve a large hole in lawyers' First Amendment rights and the public's right to know. The State Bar's proposed gag rule has its genesis in S.B. 254, authored by Sen. Quentin Kopp, which directs the State Bar to submit by March 1, 1995, a rule of professional conduct governing lawyers' out-of-court statements. The State Bar responded with Proposed Rule 5-120, which would subject a lawyer involved in a trial to discipline for uttering any public comment that the lawyer "knows or reasonably should know ... will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter." The rule would apply to all trials: civil or criminal, jury or bench. Sen. Kopp says the gag rule is needed because of media frenzies such as the one surrounding the O.J. Simpson trial. Like most laws reacting to exceptional cases, the State Bar's proposed rule would make bad law. If Judge Ito feels it is necessary to gag the lawyers in the Simpson trial, he has the power to craft State Bar reacts to the excesses of Simpson case with a proposed rule would stifle lawyers but do little enhance the fairness of most trials Commentary DAVID B. NEWDORF an order tailored to the case. So far, he has not, perhaps because he realizes such gags are ineffective and difficult to enforce. Silencing the trial bar in every case because of excessive publicity in a few cases will not make trials fairer --but it will reduce the public's access to information about courts and hamstring lawyers' ability to represent their clients. The image of the publicity-seeking lawyer on the courthouse steps surrounded by television cameras is the central myth of the debate. Most trial lawyers will go their entire career without participating in a trial that produces saturation coverage --the overwhelming TV coverage needed to create a substantial risk of tainting the jury pool. As a newspaper reporter, I wrote about hundreds of trials and suits and almost never participated in a Simpson-style the trial publicity hamstring lawyers’ THE RECORDER FRIDAY, DECEMBER 16, 1994 Commentary By DAVID B. NEWDORF DIVERTED BY SENSA TIONALISM to the case. The State Bar reacts to the excesses of to enforce. the Simpson case with a proposed rule the in every case that would stifle lawyers but do little of publicity in will trials fairer --to enhance the fairness of most trials reduce the public's access to and hamstring awyers say stupid things rule to represent L I know. Before wrote about Silencing the trial bar in newspapers. Proposed every case because of discipline uttering any excessive publicity in a few cases will hamstring lawyers, everyone lawyers' ability to represent have likelihood their clients. or the to image of the publicity-seeking or bench. EXCEPTIONAL CASES, cameras BAD STANDARD Most trial will the proposed disciplinary without carve a of the coverage needed a substantial risk of tainting the proposed Judge of suits and almost the power to craf a Simpson-style Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=05e6d475-7167-4160-977e-ebd177a38170The Recorder • Friday December 10, 1994 courthouse press conference. Most of the lawyers I dealt with were not publicity-crazed. Usually I had to overcome their inbred reluctance to talk to the media. When lawyers involved in cases were willing to explain complex legal subjects, it made my reporting fairer and more accurate. The proposed gag rule would chill lawyers, reluctant to talk in the first place, and the public will be the loser. In the handful of notorious cases, silencing the lawyers will not stop the drumbeat of publicity. The State Bar rule would not gag law enforcement, law professors and legal commentators, or the parties themselves. If lawyers can no longer act as spokesperson and respond to adverse publicity, the sophisticated and well-heeled client will find other avenues to get the message out. If you gag Simpson's trial team, it would not take long for O.J. to hire a Hollywood publicist to act as his mouthpiece. Financier Michael Milken hired a New York PR firm, reportedly at $150,000 a month, to polish his public image while he was under investigation. Corporations can and would do the same. Only the unfortunate litigant who cannot afford both a lawyer and PR person would be silenced. Proposed Rule 5-120 doesn't raise the ethical standards for lawyers. California lawyers are already constrained by Cal. Business & Professions Code §6068(d) "to employ ... such means only as are consistent with truth." However, the current climate of lawyer-bashing and Simpson-overload makes it likely that California will follow the majority of states that have adopted trial publicity rules. If there must be a rule, it should not be the one currently proposed for several reasons. First, the proposed rule's "substantial likelihood of material prejudice" standard does not adequately protect speech. The State Bar proposal takes the safe route, since five members of the U.S. Supreme Court upheld this standard against First Amendment attack in Gentile v. State Bar of Nevada, 498 U.S. 1023 (1991). While the high court upheld the "substantial likelihood" standard, it did not mandate such a standard. Other states have adopted standards more protective of speech. Virginia follows the "clear and present danger" test, while Illinois, North Dakota, Oregon and the District of Columbia require a "serious and imminent threat." California should not abdicate its own protection of speech under Article I, §2 of the state Constitution. As the California Court of Appeal stated in Feminist Women's Health Center v. Blythe, 17 Cal. App. 4th 1543 (1993): "The California Constitution is more definitive and inclusive than the First Amendment in protecting expression." California decisional law has favored the "clear and present danger" test in balancing fair trial against free speech. See Sun Co. v. Superior Court, 29 Cal.App.3d 815 (1973). Second, the rule should include a right-to-respond provision modeled after ABA Model Rule 3.6(c). The ABA model rule allows any public comment that "a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer's client." The ABA Standing Committee on Ethics and Professional Responsibility said that when the lawyer responds to unfair publicity, "the danger of the second statement prejudicing the proceeding is minimized, and the rights of the client can be protected." Third, if there must be a rule --and I don't believe there should --it should not apply to civil trials or bench trials. The State Bar proposal applies to all adjudicative proceedings, yet the prime examples of pernicious publicity (as well as the leading cases on the subject) involve highprofile criminal cases. See, e.g., Sheppard v. Maxwell, 384 U.S. 333 (1966); Gentile v. State Bar of Nevada, 498 U.S. 1023 (1991). Given the presumption that prior restraints on speech are invalid, any trial-publicity rule should specifically target the area of greatest harm. The State Bar should buck the political pressure and resist muzzling its members. Instead, the State Bar and the Legislature should recognize California's commitment to free speech, which protects lawyers, their clients and the public's right to know. The guiding principle of freedom of expression is that the antidote to unpopular, extreme or harmful speech is not censorship, but the freedom to respond. David B. Newdorf, an associate at O'Melveny & Myers in San Francisco, formerly wrote about legal affairs and government as a reporter for The Recorder, The Broward (Fla.) Review, and the Contra The Recorder • Friday December 10, 1994 conference. Most of the lawyers I with had overcome has "clear and present to the media. When lawyers trial against free speech. See v. cases to explain complex legal and more accurate. the should include a right-to-respond rule would ABA ABA f irst and the public be any public comment that "a reasonable OTHER SPEAKERS UNIMPEDED silencing the lawyers will undue prejudicial effect of publicity of gag law enforcement, law professors and legal Ethics and Professional If respond to publicity, "the danger of the second statement and well-heeled client will other gag it there must and don't believe there publicist to act as his mouthpiece. trials or bench Michael Milken hired a State proposal applies all adjudicative image prime examples of pernicious publicity he was under investigation. Corporations and on the subject) involve highwould profile criminal cases. See, and be Nevada, lawyers are already are trial-publicity rule should & 6068(d) target the area greatest only consistent with pressure climate of lawyer-bashing and members. the overload makes it likely that California will follow should recognize California's commitment states trial rules. which there should not be the one currently several reasons. is unpopular, rule's "substantial likelihood censorship, freedom standard speech. Bar the safe route, since fve of standard of Nevada, high court upheld the standard, not mandate adopted standards more protective follows the "clear and present danger" Dakota, the District should abdicate of speech Newdorf, an associate at O'Melveny theCalifornia stated Women's Center v. government as a reporter for The Blythe, California Costa Times. 0 Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=05e6d475-7167-4160-977e-ebd177a38170

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

"My best business intelligence, in one easy email…"

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.

Privacy Policy (Updated: October 8, 2015):

hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide

*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.